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Exhibit 10.2
PAYMENT GUARANTY
This PAYMENT GUARANTY ("GUARANTY") is made as of May 30,
2003, by the undersigned entities (each a "GUARANTOR") in favor of BANK OF
AMERICA, N.A. ("BANK OF AMERICA"), as Administrative Agent for itself and the
lenders ("LENDERS") from time to time party to the Credit Agreement (as
hereinafter defined) (in such capacity, "ADMINISTRATIVE AGENT").
FACTUAL BACKGROUND
The Lenders have made or intend to make a $250,000,000
credit facility available to Apartment Investment and Management Company, a
Maryland corporation ("REIT"), AIMCO Properties, L.P., a Delaware limited
partnership ("AIMCO"), AIMCO/Bethesda Holdings, Inc., a Delaware corporation
("AIMCO/BETHESDA"), and NHP Management Company, a District of Columbia
corporation ("NHP MANAGEMENT") (the REIT, AIMCO, AIMCO/Bethesda and NHP
Management are collectively referred to as "BORROWERS"), in accordance with
the Term Loan Credit Agreement (the "CREDIT AGREEMENT"), dated as of the date
hereof, by and among Borrowers, Bank of America (as Administrative Agent),
Banc of America Securities LLC, as Sole Lead Arranger and as Sole Bookrunner,
and the other Lenders from time to time party thereto. In connection with the
Credit Agreement, the Borrowers have obtained this Guaranty from the
Guarantors. Capitalized terms used but not defined herein will have the
meanings set forth in the Credit Agreement. As used herein, the term
"FACILITY" shall refer individually to the credit facility available to the
Borrowers under the Credit Agreement.
GUARANTY
1. GUARANTY OF LOAN
(a) ABSOLUTE GUARANTY. Each Guarantor absolutely,
unconditionally and irrevocably guaranties to Administrative Agent and the
Lenders the full payment of the Indebtedness (as hereinafter defined), and
unconditionally agrees to pay to Administrative Agent and the Lenders the
full amount of the Indebtedness. This is a guaranty of payment, not of
collection. If Borrowers default in the payment when due of the Indebtedness
or any part of it, each Guarantor will in lawful money of the United States
pay to Administrative Agent and the Lenders, on demand, all sums due and
owing on the Indebtedness, including all interest, charges, fees and other
sums, costs and expenses.
(b) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty shall
be limited to a maximum aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving
effect to all other liabilities of such Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liabilities of such Guarantor (x) in respect of intercompany
indebtedness to Borrowers or other affiliates of Borrowers to the extent that
such indebtedness would be discharged in an amount equal to the amount paid
by such Guarantor hereunder and (y) under any guaranty of subordinated
Indebtedness which guaranty contains a limitation as to maximum amount
similar to that set forth in this Section 1, pursuant to which the liability
of such Guarantor hereunder is included in the liabilities taken into account
in determining such maximum amount) and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, reimbursement, indemnification
or contribution of such Guarantor pursuant to applicable law or pursuant to
the terms of any agreement.
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2. LOAN. In this Guaranty, the term "Indebtedness" is
broadly defined to mean and include all primary, secondary, direct, indirect,
fixed and contingent obligations of Borrowers to pay principal, interest
(including post-petition interest in any proceeding under debtor relief laws
at the rate or in the amount otherwise applicable thereto whether or not such
interest is an allowed claim in any such proceeding), prepayment charges,
breakage costs, late charges, loan fees and any other fees, charges, sums,
costs and expenses that may be owing at any time under the Loan Documents, as
any or all of such obligations may from time to time be modified, amended,
extended or renewed. If the amount outstanding under the Indebtedness is
determined by a court of competent jurisdiction, that determination shall be
conclusive and binding on each Guarantor, regardless of whether such
Guarantor was a party to the proceeding in which the determination was made
or not.
3. RIGHTS OF ADMINISTRATIVE AGENT AND THE LENDERS. Each
Guarantor authorizes Administrative Agent or any Lender to perform any or all
of the following acts at any time in its sole discretion, all without notice
to such Guarantor and without affecting such Guarantor's obligations under
this Guaranty:
(a) Administrative Agent or the Requisite Lenders may alter
any terms of the Indebtedness or any part of it, including renewing,
compromising, extending or accelerating, or otherwise changing the time
for payment of, or increasing or decreasing the rate of interest on,
the Indebtedness or any part of it.
(b) Subject to the Intercreditor Agreement, Administrative
Agent or any Lender may take and hold security for the Indebtedness or
this Guaranty, accept additional or substituted security for either,
and subordinate, exchange, enforce, waive, release, compromise, fail to
perfect and sell or otherwise dispose of any such security in
accordance with the terms of the Indebtedness.
(c) Subject to the Intercreditor Agreement, Administrative
Agent or any Lender may direct the order and manner of any sale of all
or any part of any security now or later to be held for the
Indebtedness or this Guaranty, and Administrative Agent or any Lender
may also bid at any such sale.
(d) Subject to the Intercreditor Agreement, Administrative
Agent or any Lender may apply any payments or recoveries from
Borrowers, Guarantors or any other source, and any proceeds of any
security, to Borrowers' obligations under the Loan Documents in such
manner, order and priority as Administrative Agent or such Lender may
elect, whether or not those obligations are guarantied by this Guaranty
or secured at the time of the application.
(e) Subject to the Intercreditor Agreement,
Administrative Agent or any Lender may release Borrowers of their
liability for the Indebtedness or any part of it.
(f) Subject to the Intercreditor Agreement, Administrative
Agent or any Lender may substitute, add or release any one or more
Guarantors, other guarantors or endorsers.
(g) Subject to the Intercreditor Agreement, in addition to the
Indebtedness, Administrative Agent or any Lender may extend other
credit to Borrowers, and may take and hold security for the credit so
extended, all without affecting any Guarantor's liability under this
Guaranty.
4. GUARANTY TO BE ABSOLUTE. Each Guarantor expressly agrees
that until the Indebtedness is paid and performed in full and each and every
term, covenant and condition of this Guaranty is fully performed, such Guarantor
shall not be released by or because of:
(a) Any act or event (other than payment and performance in
full of the Indebtedness) which might otherwise discharge, reduce,
limit or modify such Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of Collateral Agent, Administrative Agent or any
Lender, or its failure to proceed promptly or otherwise as against
Borrowers, any Guarantor or any security;
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(c) Any action, omission or circumstance that might increase
the likelihood that such Guarantor may be called upon to perform under
this Guaranty or that might affect the rights or remedies of such
Guarantor as against Borrowers;
(d) Any dealings occurring at any time between
Borrowers and Collateral Agent, Administrative Agent or any Lender,
whether relating to the Indebtedness or otherwise; or
(e) Any action of Administrative Agent or any Lender
described in Section 3 above.
Each Guarantor hereby acknowledges that absent this Section 4,
such Guarantor might have a defense to the enforcement of this Guaranty as a
result of one or more of the foregoing acts, omissions, agreements, waivers or
matters. Each Guarantor hereby expressly waives and surrenders any defense to
its liability under this Guaranty based upon any of the foregoing acts,
omissions, agreements, waivers or matters. It is the purpose and intent of this
Guaranty that the obligations of each Guarantor under it shall be absolute and
unconditional under any and all circumstances.
5. GUARANTORS' WAIVERS. Each Guarantor waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against such Guarantor by Administrative Agent or
any Lender, to the fullest extent permitted by law;
(b) Any right it may have to require Administrative Agent or
any Lender to proceed against Borrowers, proceed against or exhaust any
security held from Borrowers, or pursue any other remedy in
Administrative Agent's or any Lender's power to pursue;
(c) Any defense based on any claim that such
Guarantor's obligations exceed or are more burdensome than those of
Borrowers;
(d) Any defense based on: (i) any legal disability of
Borrowers, (ii) any release, discharge, modification, impairment or
limitation of the liability of Borrowers to Administrative Agent or any
Lender from any cause, whether consented to by Administrative Agent or
any Lender or arising by operation of law or from any bankruptcy or
other voluntary or involuntary proceeding, in or out of court, for the
adjustment of debtor-creditor relationships ("Insolvency Proceeding"),
and (iii) any rejection or disaffirmance of the Indebtedness, or any
part of it, or any security held for it, in any such Insolvency
Proceeding;
(e) Any defense based on any action taken or omitted by
Administrative Agent or any Lender in any Insolvency Proceeding
involving Borrowers, including any election to have Administrative
Agent's or that Lender's claim allowed as being secured, partially
secured or unsecured, any extension of credit by Lender to Borrowers in
any Insolvency Proceeding, and the taking and holding by Administrative
Agent or any Lender of any security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty and of the existence, creation,
or incurring of new or additional indebtedness, and demands and notices
of every kind except for any demand or notice by Administrative Agent
or any Lender to such Guarantor expressly provided for in Section 1;
(g) Any defense based on or arising out of any defense that
Borrowers may have to the payment or performance of the Indebtedness or
any part of it (other than indefeasible payment in full); and
(h) Any defense based on or arising out of any action of
Administrative Agent or any Lender described in Sections 3 or 4 above.
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6. WAIVERS OF SUBROGATION AND OTHER RIGHTS.
(a) During the existence of an Event of Default, subject to
the Intercreditor Agreement and the other Collateral Documents,
Administrative Agent or any Lender (subject to Section 8.02 of the
Credit Agreement), without prior notice to or consent of any Guarantor,
may elect to: (i) foreclose either judicially or nonjudicially against
any real or personal property security it may hold for the
Indebtedness, (ii) accept a transfer of any such security in lieu of
foreclosure, (iii) compromise or adjust the Indebtedness or any part of
it or make any other accommodation with Borrowers or Guarantors, or
(iv) exercise any other remedy against Borrowers or any security. No
such action by Administrative Agent or any Lender shall release or
limit the liability of Guarantors, who shall remain liable under this
Guaranty after the action, even if the effect of the action is to
deprive Guarantors of any subrogation rights, rights of indemnity, or
other rights to collect reimbursement from Borrowers for any sums paid
to Collateral Agent, Administrative Agent or any Lender, whether
contractual or arising by operation of law or otherwise. Each Guarantor
expressly agrees that under no circumstances shall it be deemed to have
any right, title, interest or claim in or to any real or personal
property to be held by Collateral Agent, Administrative Agent or any
Lender or any third party after any foreclosure or transfer in lieu of
foreclosure of any security for the Indebtedness.
(b) Regardless of whether any Guarantor may have made any
payments to Administrative Agent or any Lender, each Guarantor hereby
waives: (i) all rights of subrogation, all rights of indemnity, and any
other rights to collect reimbursement from Borrowers for any sums paid
to Administrative Agent or any Lender, whether contractual or arising
by operation of law (including the United States Bankruptcy Code or any
successor or similar statute) or otherwise, (ii) all rights to enforce
any remedy that Lender may have against Borrowers, and (iii) all rights
to participate in any security now or later to be held by Collateral
Agent, Administrative Agent or any Lender for the Indebtedness, in each
case until the full and indefeasible payment and performance of all
Indebtedness, and all obligations of the Guarantors hereunder.
(c) Each Guarantor waives all rights and defenses arising out
of an election of remedies by the Collateral Agent, Administrative
Agent or any Lender, even though that election of remedies may affect
such Guarantor's rights of subrogation and reimbursement against the
Borrowers by the operation of law or otherwise. In addition, each
Guarantor waives all rights and defenses that such Guarantor may have
because the Borrowers' indebtedness is secured by real property. This
means, among other things, that Administrative Agent and the Lenders
may collect from such Guarantor without first foreclosing on any real
or personal property collateral pledged by the Borrowers.
7. REVIVAL AND REINSTATEMENT. If Collateral Agent,
Administrative Agent or any Lender is required to pay, return or restore to
Borrowers or any other person any amounts previously paid on the Indebtedness
because of any Insolvency Proceeding of Borrowers, any stop notice or any other
reason, the obligations of Guarantors shall be reinstated and revived and the
rights of Collateral Agent, Administrative Agent and such Lender shall continue
with regard to such amounts, all as though they had never been paid.
8. INFORMATION REGARDING BORROWERS. Before signing this
Guaranty, each Guarantor investigated the financial condition and business
operations of Borrowers and such other matters as such Guarantor deemed
appropriate to assure itself of Borrowers' ability to discharge their
obligations under the Loan Documents. Each Guarantor assumes full responsibility
for that due diligence, as well as for keeping informed of all matters that may
affect Borrowers' ability to pay and perform their obligations to the Collateral
Agent, Administrative Agent and the Lenders. Neither Administrative Agent nor
any Lender has any duty to disclose to any Guarantor any information which such
party may have or receive about Borrowers' financial condition, business
operations, or any other circumstances bearing on their ability to perform.
9. SUBORDINATION. Any rights of any Guarantor, whether now
existing or later arising, to receive payment on account of any indebtedness
(including interest) owed to it by Borrowers or any other Guarantor thereof or
to receive any payment from Borrowers or any such other Guarantor other than
those payments or distributions permitted under Sections 7.07 and 7.10 of the
Credit Agreement shall at all times be subordinate as to lien and time of
payment and in all other respects to the full and prior repayment of the
Indebtedness. No Guarantor shall be entitled to enforce or receive payment of
any sums hereby subordinated until the Indebtedness has been paid
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and performed in full and any such sums received in violation of this
Guaranty shall be received by such Guarantor in trust for the Administrative
Agent and the Lenders.
10. FINANCIAL INFORMATION. Each Guarantor shall keep true and
correct financial books and records, using generally accepted accounting
principles which are applicable to the circumstances as of the date of
determination, or such other accounting principles as the Requisite Lenders in
their reasonable judgment may find acceptable from time to time. Each Guarantor
represents, warrants and covenants to Administrative Agent and the Lenders that
all financial information with respect to such Guarantor delivered or to be
delivered to Administrative Agent and the Lenders by the Borrowers with respect
to such Guarantor under Section 6.01 of the Credit Agreement is or shall be true
and correct and fairly presents or will fairly present the financial position of
such Guarantor for the applicable period. Each Guarantor shall promptly provide
Administrative Agent and the Lenders with any additional audited financial
information that such Guarantor may obtain, and such other information
concerning its affairs and properties as Administrative Agent or any Lender may
reasonably request, including, without limitation, signed copies of any tax
returns if requested by Administrative Agent or the Lenders.
11. GUARANTORS' REPRESENTATIONS AND WARRANTIES. Each
Guarantor represents and warrants that:
(a) All financial statements delivered to Administrative Agent
or the Lenders were or will be prepared in accordance with generally
accepted accounting principles, which are applicable to the
circumstances as of the date of determination, or such other accounting
principles as may be acceptable to the Requisite Lenders at the time of
their preparation;
(b) There has been no material adverse change in such
Guarantor's financial condition since the date of the statements most
recently furnished to Administrative Agent and the Lenders; and
(c) All representations and warranties given on behalf of or
with respect to such Guarantor contained in SECTION 5 of the Credit
Agreement and in any other Loan Document or certification made in
connection with the Credit Agreement are true and correct.
12. COVENANTS OF GUARANTORS. Each Guarantor covenants and
agrees that it shall comply with and perform all covenants given on behalf of or
with respect to such Guarantor (whether expressly or as a Subsidiary) contained
in Sections 6 and 7 of the Credit Agreement and in all other Loan Documents.
13. INTENTIONALLY OMITTED.
14. INTENTIONALLY OMITTED.
15. AUTHORIZATION; NO VIOLATION. Each Guarantor is authorized
to execute, deliver and perform under this Guaranty, which is a valid, binding,
and enforceable obligation of such Guarantor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting creditor's rights
generally. The execution, delivery and performance of this Guaranty are not in
violation of any applicable law, regulation or ordinance, or any order or ruling
of any court or governmental agency applicable to such Guarantor. The Guaranty
does not conflict with, or constitute a breach or default under, any agreement
to which such Guarantor is a party.
16. ADDITIONAL AND INDEPENDENT OBLIGATIONS. Each Guarantor's
obligations under this Guaranty are in addition to its obligations under any
future guaranties, each of which shall remain in full force and effect until it
is expressly modified or released in a writing signed by Administrative Agent
and consented to by the Lenders. Each Guarantor's obligations under this
Guaranty are independent of those of Borrowers on the Indebtedness. Subject to
Section 8.02 of the Credit Agreement, Administrative Agent or the Lenders may
bring a separate action, or commence a separate arbitration proceeding against
each Guarantor without first proceeding against Borrowers, any other person or
any security that Administrative Agent or any Lender may hold, and without
pursuing any other remedy. None of Administrative Agent's or any Lender's rights
under this Guaranty shall be
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exhausted by any action by Administrative Agent or any Lender until the
Indebtedness has been paid and performed in full in cash.
17. NO WAIVER; CONSENTS; CUMULATIVE REMEDIES. Each waiver by
Administrative Agent or the Lenders must be in writing, and no waiver shall be
construed as a continuing waiver. No waiver shall be implied from Administrative
Agent's or any Lender's delay in exercising or failure to exercise any right or
remedy against Borrowers, any Guarantor or any security. Consent by
Administrative Agent or the Lenders to any act or omission by Borrowers or any
Guarantor shall not be construed as a consent to any other or subsequent act or
omission, or as a waiver of the requirement for Administrative Agent's or the
Lenders' consent to be obtained in any future or other instance. All remedies of
Administrative Agent and each Lender against Borrowers and Guarantors are
cumulative.
18. NO RELEASE. Except as otherwise provided in Section 1, no
Guarantor shall be released, in whole or in part, from its obligations under
this Guaranty except by a writing signed by Administrative Agent and the
requisite consent of Lenders as specifically required under the Credit
Agreement, if any.
19. HEIRS, SUCCESSORS AND ASSIGNS; PARTICIPATIONS. The terms
of this Guaranty shall bind and benefit the heirs, legal representatives,
successors and assigns of Administrative Agent, the Lenders and Guarantors;
provided, however, that no Guarantor may assign this Guaranty, or assign or
delegate any of its rights or obligations under this Guaranty, without the prior
written consent of Administrative Agent in each instance. Without notice to or
the consent of Guarantors, Administrative Agent and any Lender may disclose any
and all information in its possession concerning Guarantors, this Guaranty and
any security for this Guaranty to any actual or prospective purchaser of any
securities issued or to be issued by Administrative Agent or such Lender, and to
any actual or prospective purchaser or assignee of any participation or other
interest in the Indebtedness and this Guaranty; provided each recipient of such
information agrees to be bound by the confidentiality provisions of SECTION
10.17 of the Credit Agreement for the benefit of the Borrowers and the
Guarantors.
20. NOTICES.
(a) DELIVERY. All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the
context expressly otherwise provides, telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed
or delivered to the recipient's address specified on the signature
pages hereof, or to such other address as shall be designated by such
party in a written notice to the other party.
(b) RECEIPT. All such notices and communications shall, when
transmitted by overnight delivery, telegraphed, telecopied by
facsimile, telexed or cabled, be effective when delivered for overnight
delivery or to the telegraph company, transmitted by telecopier,
confirmed by telex answerback or delivered to the cable company,
respectively, or if delivered, upon delivery.
(c) RELIANCE. Administrative Agent and each Lender shall be
entitled to rely on the authority of any person purporting to be a
person authorized by Guarantors to give such notice, and neither
Administrative Agent nor any Lender shall have any liability to any
Guarantor or any other person on account of any action taken or not
taken by Administrative Agent or such Lender in reliance upon such
telephonic or facsimile notice. The obligation of each Guarantor
hereunder shall not be affected in any way or to any extent by any
failure by Lender to receive written confirmation of any telephonic or
facsimile notice or the receipt by Administrative Agent or a Lender of
a confirmation which is at variance with the terms understood by
Administrative Agent or such Lender to be contained in the telephonic
or facsimile notice.
21. RULES OF CONSTRUCTION. In this Guaranty, the word
"Borrowers" includes both the named Borrowers and any other person who at any
time assumes or otherwise becomes primarily liable for all or any part of the
obligations of the named Borrowers on the Indebtedness. If this Guaranty is
executed by more than one person, the word "Guarantors" includes all such
persons. The word "include(s)" means "include(s), without limitation," and the
word "including" means "including, but not limited to." When the context and
construction so require, all words used in the singular shall be deemed to have
been used in the plural and vice versa. No listing of
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specific instances, items or matters in any way limits the scope or
generality of any language of this Guaranty. All headings appearing in this
Guaranty are for convenience only and shall be disregarded in construing this
Guaranty.
22. GOVERNING LAW. This Guaranty shall be governed
by, and construed in accordance with, the laws of the State of California,
without regard to its choice of law rules.
23. COSTS AND EXPENSES. If any lawsuit or arbitration is
commenced which arises out of, or which relates to this Guaranty, the Loan
Documents or the Indebtedness, the prevailing party shall be entitled to recover
from each other party such sums as the court or arbitrator may adjudge to be
reasonable attorneys' fees (including allocated costs for services of in-house
counsel) in the action or proceeding, in addition to costs and expenses
otherwise allowed by law. In all other situations, including any Insolvency
Proceeding, the Guarantors agree to pay all of the Administrative Agent's and
each Lender's costs and expenses, including attorneys' fees (including allocated
costs for services of the Administrative Agent's and each Lender's in-house
counsel) which may be incurred in any effort to collect or enforce the
Indebtedness or any part of it or any term of this Guaranty. Without limiting
any rights of the Administrative Agent or Lenders under the Credit Agreement
and/or Intercreditor Agreement, as applicable, all amounts of any kind due and
payable under this Guaranty (whether for principal, interest, and other costs
under the Indebtedness, or for costs, fees, and expenses for which the
Guarantors are directly responsible hereunder, or otherwise) shall accrue
interest from the time the Administrative Agent or the Lenders make demand
therefor hereunder until paid in full in cash to Administrative Agent or the
Lenders at the Base Rate, as defined in the Credit Agreement, plus three
percentage points (3%), except to the extent that any such amounts are then
accruing interest under the Indebtedness, in which case such Base Rate plus 3%
interest rate shall not be applied if the effect would be to compound the
interest to which such obligations are subject to under the Indebtedness.
24. COVENANT. Each Guarantor hereby agrees that it will make
dividend payments on its outstanding preferred stock with its excess cash to the
extent such cash is not required by such Guarantor for its business, consistent
with prudent business practices and its cash requirements.
25. INTEGRATION; MODIFICATIONS. This Guaranty (a) integrates
all the terms and conditions mentioned in or incidental to this Guaranty, (b)
supersedes all oral negotiations and prior writings with respect to its subject
matter, and (c) is intended by each Guarantor, Administrative Agent and the
Lenders as the final expression of the agreement with respect to the terms and
conditions set forth in this Guaranty and as the complete and exclusive
statement of the terms agreed to by each Guarantor, Administrative Agent and the
Lenders. No representation, understanding, promise or condition shall be
enforceable against any party hereto unless it is contained in this Guaranty.
This Guaranty may not be modified except in a writing signed by all of
Administrative Agent (with the consent of the Requisite Lenders) and each
Guarantor. No course of prior dealing, usage of trade, parol or extrinsic
evidence of any nature shall be used to supplement, modify or vary any of the
terms hereof. As between Administrative Agent and the Lenders only, nothing
contained in this Guaranty shall alter the rights and obligations among
Administrative Agent and the Lenders set forth in the Intercreditor Agreement.
26. MISCELLANEOUS. The illegality or unenforceability
of one or more provisions of this Guaranty shall not affect any other provision.
Time is of the essence in the performance of this Guaranty by Guarantors.
27. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST GUARANTORS ARISING OUT OF OR RELATING TO
THIS GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE COURT
OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA OR IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. BY EXECUTING AND
DELIVERING THIS GUARANTY, EACH GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 20; (IV) AGREES THAT SERVICE AS
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PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION
OVER SUCH GUARANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT
ADMINISTRATIVE AGENT RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH GUARANTOR IN THE COURTS
OF ANY OTHER JURISDICTION; (VI) AGREES THAT THE PROVISIONS OF THIS SECTION 27
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
410.40 OR OTHERWISE; AND (VII) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
28. WAIVER OF JURY TRIAL. EACH GUARANTOR AND ADMINISTRATIVE
AGENT HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each Guarantor and
Administrative Agent acknowledge that this waiver is a material inducement for
Guarantors and Administrative Agent to enter into a business relationship, that
Guarantors and Administrative Agent have already relied on this waiver in
entering into this Guaranty and that each will continue to rely on this waiver
in their related future dealings. Each Guarantor and Administrative Agent
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 28 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by the
court.
29. PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE.
No provision of this Guaranty shall limit the right of any party to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as
of the date on the first page.
GUARANTORS:
AIMCO/BETHESDA HOLDINGS ACQUISITIONS, INC.
AIMCO/BETHESDA HOLDINGS ACQUISITIONS II, INC.
AIMCO/NHP HOLDINGS, INC.
NHP A&R SERVICES, INC.
AIMCO/NHP PROPERTIES, INC.
OXFORD HOLDING CORPORATION
OXFORD REALTY FINANCIAL GROUP, INC.
By: /s/ Peter K. Kompaniez
---------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AIMCO/BETHESDA GP, L.L.C. AIMCO/MIDDLETOWN, L.L.C.
AIMCO/BETHESDA EMPLOYEE, L.L.C. AIMCO/NASHUA, L.L.C.
AIMCO/BETHESDA II, LLC AIMCO/NEWPORT, L.L.C.
AIMCO/AKRON ONE, L.L.C. AIMCO/NORTH WOODS, L.L.C.
AIMCO/ALLENTOWN, L.L.C. AIMCO/OCALA, L.L.C.
AIMCO/ALLVIEW, L.L.C. AIMCO/PALM AIRE, L.L.C.
AIMCO/APOLLO, L.L.C. AIMCO/PALM BEACH, L.L.C.
AIMCO/AUGUSTA, L.L.C. AIMCO/PINELLAS, L.L.C.
AIMCO/BEACH, L.L.C. AIMCO/RUNAWAY BAY, L.L.C.
AIMCO/BEVILLE, L.L.C. AIMCO/SALEM, L.L.C.
AIMCO/BRANDERMILL, L.L.C. AIMCO/SAN BRUNO, L.L.C.
AIMCO/BRANDON, L.L.C. AIMCO/SCHAUMBURG, L.L.C.
AIMCO/CASSELBERRY, L.L.C. AIMCO/SOUTHRIDGE, L.L.C.
AIMCO/CHARLESTON, L.L.C. AIMCO/SPARTANBURG, L.L.C.
AIMCO/CHICKASAW, L.L.C. AIMCO/TIDEWATER, L.L.C.
AIMCO/CHIMNEYTOP, L.L.C. AIMCO/WESTRIDGE, L.L.C.
AIMCO/FARMINGDALE, L.L.C. AIMCO/BETHESDA WILLIAMSBURG, L.L.C.
AIMCO/FOX VALLEY, L.L.C.
AIMCO/GREENSBORO, L.L.C. By: AIMCO Properties, L.P.,
AIMCO/GREENVILLE, L.L.C. as their Sole Member
AIMCO/KETTERING, L.L.C.
AIMCO/KINGS, L.L.C. By: AIMCO-GP, Inc.
AIMCO/KIRKMAN, L.L.C. Its: General Partner
AIMCO/LAKE RIDGE, L.L.C.
AIMCO/LAKERIDGE CALIFORNIA, L.L.C. By:/s/ Peter K. Kompaniez
AIMCO/LANTANA, L.L.C. -------------------------------------
AIMCO/LAUREL, L.L.C. Peter K. Kompaniez
AIMCO/LEXINGTON, L.L.C. President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AIMCO ANCHORAGE, L.P.
AIMCO BAY CLUB, L.P.
AIMCO BRIDGEWATER, L.P.
AIMCO COLONEL I, L.P.
AIMCO COPPERFIELD, L.P.
AIMCO CROWS NEST, L.P.
AIMCO GROUP, L.P.
AIMCO HAMPTON HILL, L.P.
AIMCO HASTINGS PLACE, L.P.
AIMCO LT, L.P.
AIMCO OAK FALLS, L.P.
AIMCO PARK AT CEDAR LAWN, L.P.
AIMCO PEPPERMILL PLACE, L.P.
AIMCO RECOVERY FUND, L.P.
AIMCO SEASIDE POINT, L.P.
AIMCO SIGNATURE POINT, L.P.
AIMCO STIRLING COURT, L.P.
AIMCO SUNBURY, L.P.
AIMCO TOWNSHIP AT HIGHLANDS, L.P.
AIMCO/TRAVIS ONE, L.P.
AIMCO UT, L.P.
AIMCO WEST TRAILS, L.P.
By: AIMCO Holdings, L.P.,
as their General Partner
By: AIMCO Holdings QRS, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AIMCO BAY CLUB II, L.P.
By: AIMCO Bay Club, L.P.,
its General Partner
By: AIMCO Holdings, L.P.,
as its General Partner
By: AIMCO Holdings QRS, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AIMCO HOLDINGS, L.P.
By: AIMCO Holdings QRS, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AMBASSADOR CRM FLORIDA PARTNERS LIMITED PARTNERSHIP
By: Ambassador Apartments, L.P.,
as its General Partner
By: AIMCO Properties, L.P.,
as its General Partner
By: AIMCO-GP, Inc.,
as its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AMBASSADOR I, L.P.
By: Ambassador I, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AMBASSADOR II, L.P.
By: Ambassador II, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AMBASSADOR VIII, L.P.
By: Ambassador VIII, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AMBASSADOR IX, L.P.
By: Ambassador IX, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AMBASSADOR APARTMENTS, L.P.
By: AIMCO Properties, L.P.,
as its General Partner
By: AIMCO-GP, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AMBASSADOR X, L.P.
By: Ambassador X, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
WILLIAMSBURG LIMITED PARTNERSHIP
By: Ambassador IX, L.P.,
its Managing General Partner
By: Ambassador IX, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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PROPERTY ASSET MANAGEMENT SERVICES-CALIFORNIA, LLC
By: NHP Management Company,
its Managing Member
By: /s/ Ronald D. Monson
-----------------------------------------
Ronald D. Monson
President
NHP/CONGRESS MANAGEMENT LIMITED PARTNERSHIP
By: NHP-HG Six, Inc.,
its General Partner
By: /s/ Ronald D. Monson
-----------------------------------------
Ronald D. Monson
President
NPI-AP MANAGEMENT, L.P.
By: NPI Property Management Corporation,
its Managing General Partner
By: /s/ Ronald D. Monson
-----------------------------------------
Ronald D. Monson
President
AIMCO IPLP, L.P.
By: AIMCO/IPT, Inc.,
its General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AIMCO CALHOUN, INC. AMBASSADOR TEXAS, INC.
AIMCO COLORADO RESIDENTIAL GROUP, INC. AMBASSADOR X, INC.
AIMCO HOLDINGS QRS, INC. AMBASSADOR XI, INC.
AIMCO LJ TUCSON, INC. AMBASSADOR FLORIDA PARTNERS INC.
AIMCO PROPERTIES FINANCE CORP. ANGELES REALTY CORPORATION II
AIMCO/BRANT ROCK, INC. NHP MULTI-FAMILY CAPITAL CORPORATION
AIMCO/BEACON HILL, INC. NHP REAL ESTATE CORPORATION
AIMCO/BLOSSOMTREE, INC. A.J. TWO, INC.
AIMCO/COLONNADE, INC. AIMCO EQUITY SERVICES, INC.
AIMCO/FOOTHILLS, INC. NHP-HDV TEN, INC.
AIMCO/FOXTREE, INC. NHP-HDV FOURTEEN, INC.
AIMCO/FREEDOM PLACE, INC. SF GENERAL, INC.
AIMCO/GROVETREE, INC. CPF XIV/ST. CHARLESTON, INC.
AIMCO/HIDDENTREE, INC. CPF XIV/TORREY PINES, INC.
AIMCO/IPT, INC. CPF XIV/SUN RIVER, INC.
AIMCO/ISLANDTREE, INC. CPF XV/LAKESIDE PLACE, INC.
AIMCO/OLMOS, INC. CONCAP EQUITIES, INC.
AIMCO/ORCHIDTREE, INC. CONCAP HOLDINGS, INC.
AIMCO/OTC QRS, INC. PRA, INC.
AIMCO/PINE CREEK, INC. NATIONAL PROPERTY INVESTORS, INC.
AIMCO/POLO PARK, INC.
AIMCO/QUAILTREE, INC.
AIMCO/RIVERCREST, INC. By: /s/ Peter K. Kompaniez
AIMCO/SAND CASTLES, INC. ---------------------------
AIMCO/SAND PEBBLE, INC. Peter K. Kompaniez
AIMCO/SHADETREE, INC. President
AIMCO/SHADOW LAKE, INC.
AIMCO/SILKTREE, INC.
AIMCO/SURREY OAKS, INC.
AIMCO/TALL TIMBERS, INC.
AIMCO/THE HILLS, INC.
AIMCO/TIMBERTREE, INC.
AIMCO/WICKERTREE, INC.
AIMCO/WILDFLOWER, INC.
AIMCO/WINDSOR LANDING, INC.
AIMCO/WOODHOLLOW, INC.
AIMCO/WYDEWOOD, INC.
AIMCO/YORKTREE, INC.
AIMCO-LP, INC.
AIMCO-GP, INC.
AMBASSADOR I, INC.
AMBASSADOR II, INC.
AMBASSADOR IV, INC.
AMBASSADOR V, INC.
AMBASSADOR VIII, INC.
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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DBL PROPERTIES CORPORATION
By: /s/ Peter K. Kompaniez
---------------------------------
Peter K. Kompaniez
President
By: /s/ Paul J. McAuliffe
---------------------------------
Paul J. McAuiffe
Executive Vice President
AIMCO GP LA, L.P.
By: AIMCO-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AIMCO LP LA, L.P.
By: AIMCO LA QRS, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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LAC PROPERTIES OPERATING PARTNERSHIP, L.P.
By: AIMCO GP LA, L.P.,
a Delaware limited partnership
Its: General Partner
By: AIMCO-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
AIC REIT PROPERTIES LLC,
a Delaware limited liability company
By: AIMCO Properties, L.P.,
a Delaware limited partnership
Its: Sole Manager
By: AIMCO-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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AIMCO LA QRS, INC.
MAYER MANAGEMENT, INC.
MAYER PROPERTY SERVICES, INC.
AIMCO PARK LA BREA INC.
LA BROADCAST CENTER QRS INC.
LA CANYON TERRACE QRS INC.
LA CREEKSIDE QRS INC.
LA CRESCENT GARDENS QRS INC.
LA INDIAN OAKS QRS INC.
LA LAKES QRS INC.
LA MALIBU CANYON QRS INC.
LA HILLCRESTE QRS INC.
LA TOPANGA QRS INC.
LA CENTINELA QRS INC.
LAC PROPERTIES QRS II INC.
LAC PROPERTIES QRS III INC.
By: /s/ Peter K. Kompaniez
---------------------------------
Peter K. Kompaniez
President
NHPMN STATE MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Paul J. McAuliffe
-----------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
NHPMN MANAGEMENT, L.P.,
a Delaware limited partnership
By: NHPMN-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Paul J. McAuliffe
------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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NHPMN MANAGEMENT, LLC,
a Delaware limited liability company
By: NHP Management Company,
a District of Columbia corporation
Its: General Member and General Manager
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
NHPMN-GP, INC.,
a Delaware corporation
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
OP PROPERTY MANAGEMENT, L.P.,
a Delaware limited partnership
By: NHPMN-GP, Inc.,
a Delaware corporation
Its: Managing General Partner
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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OP PROPERTY MANAGEMENT, LLC,
a Delaware limited liability company
By: AIMCO Properties, L.P.,
a Delaware limited partnership
Its: General Member and General Manager
By: AIMCO-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
LAC PROPERTIES GP I LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LAC Properties GP I LLC,
a Delaware limited liability company
Its: General Partner
By: LAC Properties Operating Partnership L.P.,
a Delaware limited partnership
Its: Managing Member
By: AIMCO GP LA, L.P.,
a Delaware limited partnership
Its: General Partner
By: AIMCO-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Paul J. McAuliffe
---------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
2003 TERM LOAN GUARANTY SIGNATURE PAGES
<Page>
LAC PROPERTIES GP II LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LAC Properties QRS II Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
LAC PROPERTIES SUB LLC,
a Delaware limited liability company
By: LAC Properties Operating Partnership L.P.,
a Delaware limited partnership
Its: Managing Member
By: AIMCO GP LA, L.P.,
a Delaware limited partnership
Its: General Partner
By: AIMCO-GP, Inc.,
a Delaware corporation
Its: General Partner
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
2003 TERM LOAN GUARANTY SIGNATURE PAGES
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LA CENTINELA GP LLC,
a Delaware limited liability company
By: LA Centinela QRS Inc.,
a Delaware corporation
Its: Managing Member
By: /s/ Paul J. McAuliffe
--------------------------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
2003 TERM LOAN GUARANTY SIGNATURE PAGES